POSTNUPTIAL AGREEMENTS IN KENYA.

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January 12, 2021 | | Uncategorized |

Unlike prenuptial agreements, postnuptial agreements are quite rare and not in everyday use in Kenya. Postnuptial Agreement, just like a prenuptial agreement, is signed by spouses to determine their rights concerning the matrimonial property.

  • Whether you are considering a Prenuptial or postnuptial agreement, one is advised to have a candid discussion with their partner to know expectations from the agreement. After agreeing to consider either a Prenuptial or a postnuptial agreement, seek legal advice from A Legal Expert.
  • Ondaba Advocates will explain the obligations that come with either and guide you through your unique situation.

The only difference is that the postnuptial agreement is signed after the marriage of the spouses.

In Kenya’s legal framework, postnuptial agreements were anchored in the Matrimonial Causes Act (Now repealed by the Marriage Act 2014)

The Act provided that a Court may, after pronouncing a decree for divorce or annulment of marriage, inquire whether an ante-nuptial or postnuptial agreement is made by the parties whose marriage is subject to the divorce.

The Act implied that it envisaged that after marriage, spouses might want to clarify on issues of the property rights acquired during the marriage by executing a postnuptial agreement.

The postnuptial agreement will guide the Court in making its decisions by touching on the division of matrimonial property, maintenance, and division of liabilities.

The Court of Appeal in C Y C v K S Y2015] eKLR, granted the Applicant’s request to stay the execution of a ruling and order made by Justice Musyoka in C Y C v K S Y [2014] Eklr. 

The case involved a divorce proceeding in which the party had executed a postnuptial agreement touching the maintenance of the Petitioner and her children.

The High Court had awarded the Respondent interlocutory award of a four-bedroom house or rent between KES.150000 and KES. 250000 furniture, houseware, and household necessities or a KES. 1,500,000 one-off for purchase of such items, KES. 300000 per month to cater for living expenses and utilities, and return by the Petitioner to the Respondent of a motor vehicle (either a Prado or Lexus) that had previously been placed at her disposal or in the alternative, provision of another car of similar range or standard.

The Petitioner, being aggrieved by the High Court ruling, moved to the Court of Appeal seeking to set aside the ruling and the order.

The Petitioner’s application was anchored on the postnuptial agreement they had signed with the Respondent.

The Petitioner maintained that through the postnuptial agreement; he had agreed to pay the Respondent KES. 30,000,000 as maintenance of the Respondent and children.

The Petitioner also claimed that despite paying the amount stated in the postnuptial agreement, he was still paying the school fees and upkeep of his children, one in university in the United States and the other in an International school in Kenya.

The Petitioner further informed the Court that he had paid the Respondent further payments in the form of what she called “consolation money.”

The Respondent acknowledged receiving the money. The Court exercised its discretion and set aside the ruling and order of the High Court.

In the final judgment of the case in C Y C v K S Y [2017] eKLR, Justice Musyoka granted the Petitioners prayers to dissolve the marriage. He further confirmed the postnuptial agreement executed by the parties on November 29, 2005.

In upholding the postnuptial agreement, the Court affirmed that postnuptial agreements and indeed applicable and recognized in Kenya. The case serves as one of the authoritative confirmations that postnuptial agreements are applicable in Kenya, despite the lack of substantive law.

SIGNIFICANT DIFFERENCES BETWEEN PRENUPTIAL AND POSTNUPTIAL

Both Prenuptial and Postnuptial agreements share striking similarities with only one significant difference, the time of creation. Whereas prenuptial agreements are signed in contemplation of a marriage, postnuptial Agreements are entered into after marriage.

ADVANTAGES OF PRENUPTIAL AND POSTNUPTIAL AGREEMENTS

  • Signing a Prenuptial or Postnuptial Agreement makes the process of dividing property after divorce simple. The agreements make the process cheaper, faster and amiable.
  • Prenuptial agreements provide and cater for the future of children from previous relationships of either party.
  • Prenuptial agreements promote full disclosure and open discussion on the couple’s finances. Before signing a prenuptial agreement, the couples are expected to openly discuss issues touching on their debts, income, and assets for the sake of planning and avoiding surprises/conflicts in or after the marriage.
  • Prenuptial agreements prevent financial exploitation by the other or getting married for financial gains.
  • Postnuptial agreements can be used to address issues that had been left out in a prenuptial agreement.
  • Couples who anticipate a divorce can agree to a postnuptial agreement to address the liabilities and assets they acquired together. Postnuptial agreement will simplify the divorce process and avoid contacted court proceedings regarding the division of matrimonial property.

 

DISADVANTAGES OF PRENUPTIAL AND POSTNUPTIAL AGREEMENTS

  • One may feel uncomfortable sharing their financial situations and may not give full disclosure during the negotiation of a prenuptial agreement. This may lead to intentional withholding of crucial information by a party, which may prove problematic in the future.
  • A party may view the signing of a prenuptial agreement as a sign of non-commitment in the marriage.
  • Poorly drafted prenuptial agreements may be invalidated by the Court, hence failing to meet the couple’s expectations in case of a divorce.
  • Some couples believe that signing a postnuptial agreement is a sign that a marriage has irretrievably broken down. Some people believe that signing a postnuptial agreement is a sign that the couple is unwilling to salvage their marriage and have set their marriage for divorce.
  • Poorly drafted postnuptial agreement risks invalidation, forcing the parties to seek the Court’s intervention in sharing matrimonial property. The Court process is lengthy and might not go as the couple had anticipated in their postnuptial agreement.

Should you consider a Prenuptial or postnuptial agreement, talk to Ondaba Advocates today for legal consultation services.

This briefing is a highlight of the Law on Pre and Postnuptial agreements in Kenya and is intended for general use only. It does not, in any way, create an advocate-client relationship between the parties (sender/recipient), and neither does it constitute legal advice or opinion. Kindly seek the advice of Counsel before relying on this or any other information on any of our media platforms. 
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